43 Neb. 84 | Neb. | 1894
On the 7th day of May, 1891, a promissory note, due in five months, for $987.20 was given to the Boyer-Shelly Company. This note was signed “James Carlin, S. F. Backus.” On the same day a chattel mortgage was given to the Boyer-Shelly Company to secure the payment of this note on the following property: “Sixty head of steers, two and three years old, and branded with slit in right ear. Said cattle were purchased in Union Stock Yards, South Omaha, Nebraska, and are to be shipped to Creighton, Nebraska, and taken to James Carlin’s place, four and one-half miles north, put in pasture and remain until ready for market. The above described cattle are all the cattle of this brand on Mr. Carlin’s place. That said stock, cattle, and chattels are now in perfect health and in the undisputed possession of said party of the first part on the premises of said party, on section 33, township 30, range 5, in Knox county, Nebraska.” This mortgage began as follows: “Know all men by these presents, that we, S. F. Backus and James Carlin (comprising the firm S. F. Backus & Co.), of the county of Kuox and state of Nebraska,” etc. The mortgage was signed “ James Carlin, S. F. Backus,” and a true copy thereof was filed in the office of the county clerk of Knox county, on the 9th day of May, 1891, at 9 o’clock A. M., and indexed “ Backus S. F. & Co., mortgagor; Boyer-Shelly Company, mortgagee ” On the 18th day of May, 1891, a note for $374.50 was given to the said Boyer-Shelly Company, due October 7, 1891. This note was signed “S. F. Backus & Co., by Jas. Carlin.” On said 18th day of May a chattel mortgage was given to the said Boyer-Shelly Company on the following described property, to-wit: “Thirty-five steers, two years old, and branded with slit in right ear. Said cattle were purchased in Union Stock Yards, South Omaha, Nebraska, and are to be shipped to Creighton,
It appears that about November 1, 1891 Waggoner & Birney, the plaintiffs in error, at the request of James Carlin, paid to the Boyer-Shelly Company the full amount of' the principal and interest due them on the notes and chattel mortgages held by them and which had been given-them on the 7th and 18th days of May, as already stated; and the Boyer-Shelly Company indorsed and delivered said notes and chattel mortgages securing the same to Waggoner & Birney, and at the same time executed and delivered to Waggoner & Birney releases of said chattel mortgages. The object of this transaction was that Carlin desired Waggoner & Birney to lend him some $300 and take a mortgage on all these cattle to secure the amount due the-Boyer-Shelly Company and the amount Waggoner &. Birney was to advance him. For this purpose Waggoner & Birney appear to have taken the note of Carlin for the amount of the Boyer-Shelly Company’s notes and interest and the amount which Waggoner ■& Birney were to lends or advance Carlin; and at the same time took a chattel mortgage on the ninety-four head of cattle described in the Boyer-Shelly Company’s mortgages to secure its payment. About the time Waggoner & Birney had this transaction with Carlin they ascertained that the. mortgages made to-the Boyer-Shelly Company purported to be executed in the-name of S. F. Backus & Co., and thereupon Waggoner & Birney deposited with their bankers at South Omaha the notes and mortgages they had purchased of the Boyer-Shelly Company, the releases of the same, and the new mortgage executed to them by Carlin, and instructed their bankers to-
Backus testified on the trial that he and Carlin, about the first of May, 1891, entered into a copartnership under the firm name of S. F. Backus & Co., that they had drawn and signed articles of copartnership; that these articles of copartnership were never filed in Knox county j
From the time the cattle reached the Carlin farm until the day before Thanksgiving day, in 1891, these cattle were herded and pastured on the Carlin farm and were all the time in the possession there of Carlin or Backus or S. F. Backus & Co., or the servants and-agents of one of them, and were in the possession of Backus on the day before Thanksgiving day, 1891, when they were seized by the First National Bank and the State Bank of Creighton on the mortgages given by Carlin on the 2d and 24th days of July and 8th day of October, 1891, respectively. On the 4th day of December, 1891, S. F. Backus and James Carlin executed to Waggoner & Birney a bill of sale of the ninety-four head of steers, and on the same date S. F.
At the close of the evidence counsel for the banks moved the court to instruct the jury to return a verdict in their favor, because: “First, that the testimony as introduced is not sufficient to authorize a recovery on the part of the plaintiffs; second, plaintiffs have failed to show there was any partnership existing between James Carlin and S. F. Backus, but, on the contrary, the evidence discloses that it amounted to no more than a loan of $300 on the part of Backus to James Carlin, to be returned in any event, but if any money was made on the cattle deal, he was to receive a portion of the profits; third, because the plaintiffs in this case have shown no right to recover on the instruments introduced, as the same are shown in law to have been canceled and discharged of record; fourth, because
1. Counsel for the banks say in their briefs that the district court held the four points made in their motion to be well taken as his reason for sustaining such motion. Assuming this to be correct, we think the learned judge was wrong. The question as to whether or not a copartnership existed between S. E. Backus and James Carlin was in this case one of fact for the determination of the jury. The rule is that where there is no dispute as to the facts, or where all the facts are found or admitted, then the question of copartnership or no copartnership is a question of law for the court. (Everitt v. Chapman, 6 Conn., 347; Farmers Ins. Co. v. Ross, 29 O. St., 429; Kingsbury v. Tharp, 61 Mich., 216.) Where there is a dispute as to whether a copartnership exists and a dispute as to the existence of facts which are necessary to constitute a copartnership, the question is for the jury. (Seabury v. Bolles, 51 N. J. Law, 103; Meriden Nat. Bank v. Gallaudet, 120 N. Y., 298; McMullan v. Mackenzie, 2 Greene [Ia.], 368; Butler v. Finck, 21 Hun [N. Y.], 210; McDonald v. Matney, 82 Mo., 358; Partridge v. Ryan, 14 Ill. App. Ct., 598; Chamberlain v. Jackson, 44 Mich., 320; Densmore v. Mathews, 58 Mich., 616.) In the case at bar evidence had been introduced of statements made by Carlin to the effect that he and Backus were not copartners, and that the money
2. Counsel for the banks say that when Carlin executed the mortgages'in question to his clients, he was openly and
3. Counsel for the banks also say that the court held that the releases executed by the Boyer-Shelly Company of the mortgages made to them amounted to a payment and complete satisfaction of the mortgages so far as the rights of the banks were concerned. The banks were not prejudiced by the releases made of these mortgages by the Boyer-Shelly Company, nor by the filing of such releases with the county clerk of Knox county. The lien of the banks on this property attached, if at all, long before these releases were executed, and at a time when the mortgages now held by Waggoner & Birney were in full force and of record in Kuox county. The right of the banks to this property is not to be determined by the condition of the mortgage record of Knox county at the time they took possession of the property. Whether Waggoner & Birney, by having the Boyer-Shelly Company execute releases of these mortgages, and by filing the releases in the office of the county clerk of Knox county, and by paying the amount of the notes secured by said mortgages, intended thereby to absolutely pay off and discharge the notes secured by said mortgages, was also a question of fact for the jury, to be determined from all the evidence in the case. If the intention of Waggoner & Birney was that the mortgage releases should only be filed after it was ascertained that Carlin had a clear title to the property, and the mortgage, made by him to them about the 1st of November,
Reversed and remanded.